General | Data Protection Laws

Law n° 2018-493 of 20 June “relating to personal data protection” incorporates the GDPR provisions in French national law. This new law modifies the existing French Data Protection Act (together the “revised French DPA”).

Entry into force

The GDPR applies from 25 May 2018.

The revised French DPA has retrospective effect and applies from 25 May 2018.

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Scope of Application

What is the territorial scope of application?

The GDPR applies the processing of personal data in the context of the establishment of a controller or processor in the EU.

It also contains express extra-territorial provisions and will apply to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.

Is there a concept of a controller and processor?

Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.

Both controllers and processors are subject to the rules in the GDPR, but the obligations placed on processors are more limited.

Are both manual and electronic records subject to data protection legislation?

Yes. The GDPR applies to both electronic records and structured hard copy records.

Are there any national derogations?

The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.

Personal Data

Personal data is information relating to an identified or identifiable natural person.

This is a broad term and includes a wide range of information. The GDPR expressly states it includes online identifiers such as IP addresses and cookie identifiers.

Is information about legal entities personal data?

No. However, information about sole traders and partnerships is likely to be personal data.

What are the rules for processing personal data?

All processing of personal data must comply with all six general data quality principles. Personal data must be: (a) processed fairly and lawfully; (b) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (c) adequate, relevant and not excessive; (d) accurate and, where necessary, up to date; (e) kept in an identifiable form for no longer than necessary; and (f) kept secure.

The processing of personal data must also satisfy at least one condition for processing personal data. These conditions are that the processing is: (a) carried out with the data subject’s consent; (b) necessary for the performance of a contract with the data subject; (c) necessary for compliance with a legal obligation; (d) necessary in order to protect the vital interests of the data subject; (e) necessary for the public interest or in the exercise of official authority; or (f) necessary for the controller’s or recipient’s legitimate interests, except where overridden by the interests of the data subject.

These rules are almost identical to the core requirements for processing personal data in the Data Protection Directive.

Are there any formalities to obtain consent to process personal data?

Obtaining consent will become much harder under the GDPR.

To be valid, consent must be in clear and plain language and, where sought in writing, separate from other matters. Consent must be based on affirmative action so pre-ticked boxes are not acceptable. Consent might not be valid if: (i) there is any detriment to the data subject for refusing; (ii) there is an imbalance of power; (iii) consent for multiple purposes is bundled together; or (iv) the consent is a condition of entering into a contract. Finally, consent can be withdrawn at any time.

In practice, other processing conditions should be relied on where possible. Consent will only be an appropriate processing condition if the individual has a genuine choice over the matter, for example, whether to be sent marketing materials.

The inclusion of genetic and biometric data is new and an extension to the types of sensitive personal data in the Data Protection Directive.
Information about criminal offences is dealt with separately and is subject to even tighter controls.

Are there additional rules for processing sensitive personal data?

Sensitive personal data may only be processed if a condition for processing sensitive personal data is satisfied. A condition arises where the processing: (a) is carried out with the data subject’s explicit consent; (b) is necessary for a legal obligation in the field of employment law; (c) is necessary to protect the vital interests of the data subject or another person where the data subject is unable to give consent; (d) is carried out by a non-profit-seeking body and relates to members of that body or persons who have regular contact; (e) relates to data made public by the data subject; (f) is necessary for legal claims; (g) is for reasons of substantial public interest under EU or Member State law; (h) is necessary for healthcare reasons; (i) is necessary for public health reasons; or (j) is necessary for archiving, scientific or historical research purposes or statistical purposes and is based on EU or Member State law.

The revised French DPA allows the processing of sensitive personal data about health for public interest reasons under certain conditions (e.g. declaration of conformity with standard references and regulations established by the CNIL, ad hoc authorisation, etc.).

The revised French DPA also contains additional provisions regarding processing of sensitive personal data. It allows: (i) employers' or administrations' processing of biometric data where strictly necessary to control access to the workplace or the use of apparatus or software applications; and (ii) processing of sensitive personal data where that data will be promptly anonymized in accordance with a method validated by the CNIL.

Other provision relate to the reuse of public information contained in judgments and decisions and, under some circumstances, processing necessary for public research.

Finally, the revised French DPA imposes controls on the processing of national registration numbers, also known as NIRs. These can only be processed by the French administration to offer specific services or for limited purposes for public statistics, scientific or historical research (which may require additional cryptographic protection). A further Decree will be adopted to determine what other categories of data controllerscan process this data and for which purposes. In the meantime, an exception regarding the processing of the NIR have already been provided for but it is strictly limited to the sole purpose of responding to and managing the consequences of health alerts in an emergency situation.

Are there additional rules for processing information about criminal offences?

It is only possible to process information about criminal convictions or offences if: (a) it is carried out under the control of official authority; or (b) when the processing is authorised by EU or Member State law.

The revised French DPA lists categories of persons allow to process such personal data: (i) courts, public authorities and legal persons entrusted with a public service, acting within the scope of their functions; (ii) auxiliaries of justice (such as mediators or experts) for the strict exercise of their functions, as well as entities collaborating with judicial entities as determined by Decree; and (iii) persons reusing public information appearing in published rulings, provided that the processing has neither the purpose or effect of allowing the re-identification of the concerned persons.

The revised French DPA also allows natural or legal persons to process information about criminal offences for the purpose of enabling them: (i) to take legal action as a victim or on behalf of such victim; and (ii) to have a ruling enforced, for a duration proportionate to this purpose. Communication to a third party is only possible under the same conditions and to the extent strictly necessary for the pursuit of the same purposes.

Finally, the processing of information about criminal offences is permitted by specified intellectual property rights management agencies for the purpose of defending those rights.

Are there any formalities to obtain consent to process sensitive personal data?

Consent to process sensitive personal data must be explicit. The general restrictions on consent, set out above, will also apply. This suggests a degree of formality, such as ticking a box containing the express words “I consent”. It is unlikely explicit consent could be obtained through a course of conduct.

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Data Protection Officers

When must a data protection officer be appointed?

Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing sensitive personal data on a large scale (including processing information about criminal offences).

The revised French DPA provides that controllers processing personal data under the scope of Law Enforcement Directive must appoint a data protection officer (with the exception of persons acting within scope of their judicial activity).

What are the duties of the data protection officer?

The data protection officer must be involved in all data protection issues and cannot be dismissed or penalised for performing their role. The data protection officer must report directly to the highest level of management.

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Accountability and Privacy Impact Assessments

Is there a general accountability obligation?

The GDPR adds a new general accountability obligation under which you must not only comply with these new rules, but also be able to demonstrate you comply with them. This means ensuring suitable policies are in place supported by audit and training.

Are privacy impact assessments mandatory?

A privacy impact assessment must be conducted where “high risk” processing is carried out. This includes: (a) systematic and extensive profiling that produces legal effects or significantly affects individuals; (b) processing sensitive personal data on a large scale; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV).

The Article 29 Working Party has subsequently issued Guidelines on Data Protection Impact Assessments (WP 248). It suggests there are nine criteria to consider to determine whether to conduct a privacy impact assessment, and that an assessment should be made if two or more of those criteria are met. This is arguably wider than the criteria set out in the paragraph above.

The revised French DPA specifies that controllersprocessing personal data under the Law Enforcement Directivemust conduct a privacy impact assessment when that processing is high risk (for example, when such processing relates to sensitive personal data).

In order to help conduct privacy impact assessments, the CNIL has developed an open source tool, recently updated by the CNIL, which is available here.

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Rights of Data Subjects

Privacy notices

A controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.

It is a general obligation under French law to use the French language when conducting business or dealing with consumers or employees in France. It is very likely this obligation will also apply to privacy notices under the GDPR.

Rights to access information

Data subjects will have a right to access copies of their personal data by making a written request to the controller. The initial request is free, though a charge can be made for subsequent requests. Controllers can refuse the request if it is manifestly unfounded or excessive. The response must be provided within a month, though this can be extended by two months if the request is complex.

Rights to data portability

Data subjects will also have a right to data portability where the condition for processing personal data is consent or the performance of a contract. It entitles individuals to obtain any personal data they have “provided” to the controller in a machine-readable format. Individuals can also ask for the data to be transferred directly from one controller to another. There is no right to charge fees for this service.

A data subject can ask that their data be deleted in certain circumstances. However, those circumstances are relatively limited, for example where the processing is based on consent, that consent is withdrawn and there are no other grounds for processing. Even where the right does arise, there are range of exemptions, for example where there is a legal obligation to retain the data.

Objection to direct marketing

A data subject can object to their personal data being processed for direct marketing purposes at any time. This includes the processing of their personal data for profiling purposes.

Other rights

The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition.

Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affects the data subject. The Article 29 Working Party has issued Guidelines on Automated Decision Making and Profiling (WP251).

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Security

Security requirements in order to protect personal data

The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.

In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.

Specific rules governing processing by third party agents (processors)

A controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.

The controller must have written contracts with its processor containing the enhanced processor clauses.

Notice of breach laws

A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours. If the personal data breach is a high risk for data subjects, those data subjects must also be notified.

The revised French DPA provides for a list of processing that will be exempt from the obligation to notify data subjects. That list will be established in a future Decree. However, no information is available at this time regarding the adoption of such a list.

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Transfer of Personal Data to Third Countries

Restrictions on transfers to third countries

The GDPR contains a restriction on transborder dataflows. Transfers can take place if it: (i) is to a whitelisted country; (ii) is made pursuant to a set of Model Contracts; (ii) is made pursuant to binding corporate rules; (iv) is made to an importer who has signed up to an approved code or obtained an approved certification; or (v) is otherwise approved by the relevant supervisory authority.

Transfers are also possible if an individual derogation applies. These derogations allow a transfer if it: (i) is made with the data subject’s explicit consent; (ii) is necessary for the performance of a contract with, or in the interests of, the data subject; (iii) is necessary or legally required on important public interest grounds, or for legal claims; (iv) is necessary to protect the vital interests of the data subject; (v) is made from a public register; or (vi) is made under the so-called minor transfer exemption.

The position is broadly the same as under the Data Protection Directive. One notable change is the introduction of the so-called minor transfer exemption, though that exemption will be very hard to rely on in practice.

Notification and approval of national regulator (including notification of use of Model Contracts)

In general, there is no need for prior approval from a supervisory authority. However, this depends on the justification for the transfer.

For example, there will be no obligation to get approval for the use of Model Contracts (though it is possible some supervisory authorities may want to be notified of their use). In contrast, it will be necessary to get approval to rely on binding corporate rules, and the supervisory authority must be informed of transfers made using the minor transfers exemption.

Use of binding corporate rules

The GDPR places binding corporate rules on a statutory footing. It will be possible to obtain authorisation from one supervisory authority that will cover transfers from anywhere in the EU.

In France, then a number of bindingcorporaterules were approved by the CNIL under the current law including Airbus, Atos, AXA, BMC, Bristol Myers Squib, Cap Gemini, CMA-CGM, Corning, ENGIE, GE, Hermès, HP, International SOS, Linkbynet, Michelin, Novartis, Safran, Salesforce, Schneider, Société Générale, and Total.

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The GDPR is intended to make data protection a boardroom issue. It introduces an antitrust-type sanction regime with fines of up to 4% of annual worldwide turnover or €20m, whichever is the greater. These fines apply to breaches of many of the provisions of the GDPR, including failure to comply with the six general data quality principles or carrying out processing without satisfying a condition for processing personal data.

A limited number of breaches fall into a lower tier and so are subject to fines of up to 2% of annual worldwide turnover or €10m, whichever is the greater. Failing to notify a personal data breach or failing to put an adequate contract in place with a processor fall into this lower tier.

The revised French DPA does not modify existing criminal sanctions. The current criminal sanctions include imprisonment for up to five years and fines ofup to EUR 300,000 (and up to EUR 1,500,000 for legal entities). However, it is likely that these sanctions will be updated in the near future.

Compensation

Data subjects have a right to compensation in respect of material and non-material damage.

Other powers

Regulators will have a range of other powers and sanctions at their disposal. This includes investigative powers, such as the ability to demand information from controllers and processors, and to carry out audits. They will also have corrective powers enabling them to issue warnings or reprimands, to enforce an individual’s rights and to issue a temporary or permanent ban on processing.

Practice

In France, there is no current enforcement practice in relation to the GDPR. However, the enforcement of the current law is instructive.

In 2017, the CNIL received 8,360 complaints. 27% were related to the dissemination of personal data on the Internet, 25% to the business and marketing sector, 16% to human resources, 12% to the banking sector, 8% related to the health and social sector, and 5% related to public liberties.

In 2017, there were 341 investigations. This led to 79 formal notices, 14 sanctions (nine financial sanctions and five warnings).

Out of those 341 investigations, 65 were conducted on-line and 47 targeted CCTV systems. These online investigations are facilitated by the “Law on consumption” dated 17 March 2014. The CNIL’s 2017 activity has been relatively on par with its 2016 activity.

On 13 April 2017, the CNIL issued a fine of EUR 15,000 against Allocab. In November 2015, Allocab was put under notice to take certain remedial action within three months. A follow up investigation by the CNIL revealed that Allocab had failed to implement those remediation measures in relation with inactive accounts and credit card cryptograms. Allocab argued this was the result of technical malfunctions. However, the CNIL issued a sanction but in determining the amount of the fine, the CNIL also took into account the fact the breaches had ceased on the day of is ruling.

On 27 April 2017, the CNIL issued a fine of EUR 150,000 against Facebook Inc. and Facebook Ireland. Investigations conducted by the CNIL revealed numerous breaches, including combining the personal data of Internet users for advertising targeting purposes. It was also found that Facebook traced users (with or without an account), without their knowledge, on third-party websites via a dedicated cookie. The CNIL gave notice to Facebook Inc. and Facebook Ireland to comply, but ultimately considered the companies had failed to properly remediate the identified breaches. The CNIL explained the amount of the fine was justified by the number of breaches identified, their seriousness and the large number of affected individuals in France (33 million).

On 18 July 2017, the CNIL issued a fine of EUR 40,000 against Hertz France. It considered that it had been negligent in monitoring the actions of its subcontractor, which third parties to access a large volume of personal and directly identifying data.

On 16 November 2017, the CNIL issued a fine of EUR 25,000 against WEB EDITIONS for failing to ensure the required level of security of the personal data of the users of its website and failing to set up basic technical protection measures.

On 9 January 2018, the CNIL has issued an EUR 100,000 fine against DARTY for not having sufficiently secured the data of customers who made an online request for after-sales service.

On 7 June 2018, the CNIL has issued an EUR 250,000 fine against OPTICAL CENTER for having insufficiently secured the data of its customers placing an order online from its website.

The CNIL has not published a detailed programme for 2018, however, it explained its main focus would be supporting professionals in their transition to the GDPR and accompanying innovation. Its operating budget has been increased by EUR 600,000.

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

The “Trust in the Digital Economy Act” (the “Act”) implemented Article 13 of the Privacy and Electronic Communications Directive on 21 June 2004. The Act is now codified under Article L. 34-5 of the Postal and Electronic Communications Code and is mentioned in Articles L. 222-16 and 223-7 of the Consumer Code.

The Ordinance no. 2011-1012 of 24 August 2011 (the “Ordinance”). The Ordinance implements the amendments to the Privacy and Electronic Communications Directive.

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Cookies

Conditions for use of cookies

The current French Data Protection Act, as amended by the Ordinance, requires data controllers to obtain prior consent from users to store or access cookies after having provided the user with information about the purposes for which cookies are used and about the means to prevent such storage or access

The Ordinance explicitly recognises that such consent may result from appropriate settings on a user’s connection device (such as an internet browser) or from any other applications placed under a user’s control, and the CNIL’s guidance provides that an implied consent to cookies is sufficient, provided that such consent is informed and prior (CNIL, 5 December 2013, no. 2013-378).

Prior information and consent requirements do not apply where the cookie’s sole purpose is to enable or facilitate the communication (i.e. technical cookies) or where the cookie is strictly necessary to provide an online communication service requested by the user (e.g. cookies concerning language preferences).

Regulatory guidance on the use of cookies

The CNIL issued guidance about the Ordinance on 26 April 2012, as well as a detailed recommendation on the use of cookies (CNIL, 5 December 2013, no. 2013-378). The regulatory guidance indicates that current browser default settings are not sufficient to provide consent.

Other means to obtain consent include: (i) use of a banner at the top of a web page, that must not disappear for as long as the internet user remains on that page and provides clear and explicit information on the purposes for which the cookies are used and on means to opt out; (ii) an area requesting consent highlighted on a web page; (iii) boxes to tick at the time of subscription to an online service; or (iv) further navigation on the website. The CNIL considers that it is not possible to obtain consent simply by including cookie wording in the website’s terms of use. Furthermore, the CNIL does not recommend pop-up windows because they are often blocked by the browser. Finally, the CNIL specifies that users who have given their consent to the storage of cookies on their computers must be able to remove them at all times.

The CNIL also lists the cookies which it considers as being exclusively intended to enable or facilitate communication by electronic means or strictly necessary for the provision of an online communication service at the user’s express request. This includes shopping cart cookies, session cookies, cookies used for security purposes and cookies registering the language spoken by the user. However, the CNIL still recommends that users are provided with information about those cookies in the privacy policy of the website.

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Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

Direct marketing e-mail requires the “prior consent” of the recipient. “Prior consent” is defined as a “free, specific and informed manifestation of consent to his personal data being used for direct marketing purposes”.

Conditions for direct marketing by e-mail to corporate subscribers

Direct marketing by e-mail is permitted subject to prior notification that the e-mail address will be used for marketing purposes. The marketing e-mail must relate to the profession of the person to whom the marketing e-mail is sent.

Exemptions and other issues

For both individual and corporate subscribers, it is permitted to send an e-mail for the purposes of direct marketing if it falls within the similar products and services exemption and complies with the requirements of the DPA.

The sender must include the eCommerce information and provide simple means to freely object to any further similar communications.

However, direct marketing e-mails are prohibited if: (i) the identity of the sender is disguised or concealed; (ii) an opt-out address is not provided; or (iii) the title of the e-mail does not relate to the service or product offered.

Regarding corporate subscribers specifically, the rules on consent and objection outlined above do not apply to generic e-mail addresses such as info@companyname.com, contact@companyname.com and order@companyname.com.

SMS/MMS are subject to the rules on direct marketing by e-mail rather than the rules on direct marketing by telephone.

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Marketing by Telephone

Professionals wishing to engage in direct marketing by phone must inform consumers of their right to register with Bloctel, a direct marketing opposition list. Professionals cannot call consumers who have registered on Bloctel save in respect of limited situations.

It is not permitted to make direct marketing calls to individual subscribers who have previously objected to such calls.